Monday, 22 June 2015

This post is split from Seanad Reform 2015 concentrating on the reform of lack of reform re Nominating bodies. Looking at which new bodies have been added recently and looking at Seantor Katherine Zappones attempt at encouraging new bodies to register.

8 (2) (b) a body shall not be eligible to be registered in the register in respect of any particular panel unless either—
(I) (i) its objects primarily relate to or are connected with the interests and services mentioned in subsection 10 of Section 7 of Article 18 of the Constitution in respect of that particular panel, and
(ii) its activities are concerned mainly with such interests and services, or
(II) its members are representative of persons who have knowledge and practical experience of such interests and services ;
(II) its members are representative of persons who have knowledge and practical experience of such interests and services ;
(c) a body which is formed or carried an wholly or substantially for profit or which carries on, as its sole or principal function, any trade or business for profit shall not be eligible for registration in the register ;
(d) the Seanad Returning Officer may refuse to register any body (not being an excepted body) in the register unless—
(I) its organisation and direction are governed by articles of association, rules or other regulations which—
(i) provide for an annual general meeting to which all members are invited by a notice forwarding an agenda including the following items, that is to say, minutes of preceding meeting, presentation of annual report, consideration of statement of accounts as certified by the auditor, election of executive committee, election of auditors,
(ii) make adequate provision for the carrying on of the business of the body by an executive committee, and
(iii) provide for the audit and certification of accounts by a public auditor or other qualified person, and
(II) its average annual revenue from subscriptions during the five years immediately preceding the application for registration has been in the case of a charitable body, not less than one thousand pounds, or, in any other case, not less than two hundred and fifty pounds,
but subject to the proviso that the requirements set out in this paragraph as to election of auditors, provision for audit and annual revenue shall not apply in the case of such bodies engaged in the promotion of scientific or general knowledge as in the opinion of the Seanad returning officer are of national importance ;
(e) a body which is composed wholly or mainly of persons who are in the employment of the State or of persons who are in the employment of local authorities and the objects of which include the advancement or protection of the interests of such persons in relation to their said employment shall not be eligible for registration in the register ;

Does the law suggest that you would have to create a subscription based 'human/civil rights workers' association and then try to get that registered?

Senator Katherine Zappone: Prior to getting into the proper debate on the Seanad referendum we gathered a group of civil society organisations to inform them about what the vocational aspect of the Seanad meant, and to invite them to consider being nominating bodies as part of our agenda to open up the Seanad and connect with the public. Vocational for us meant sectoral in particular. I like how the various vocational panels are renamed in the report to cover public administration and social services including voluntary social activities. Through the experience, my colleagues and I found that even when we tried to inform civil society groups about what being a registered body meant and about nominating candidates to become part of a panel there was still confusion. As we encouraged them to become registering bodies and they engaged with the Clerk of the Seanad - and I agree with all of the comments made about the Clerk of the Seanad - we found it seemed to be very difficult to go through the process to become a registering body. This is partly because much of the process is based on antiquated law and procedures. In addition to an information campaign to encourage more bodies to register we need to modernise how registration happens and the criteria for organisations to register. One of the stumbling blocks we found is many bodies which want to register may not be considered charities because they are civil rights organisations.

Senator Katherine Zappone: There is no stated rationale contained in the Bill, or in any research that underpinned the Bill, to abolish the role of nominating bodies. We should change how candidates are nominated to stand for the panels by initiating a dramatic expansion of the nominating bodies. If a Bill were to modernise the criteria whereby an organisation could become a nominating body it would open up Seanad Éireann to civil society. A couple of weeks ago I hosted, along with some of my Independent colleagues, a public meeting for civil society and arts organisations which might be interested in becoming nominating bodies. Representatives of more than 60 organisations showed up and they demonstrated significant enthusiasm for the possibility that this provided them to influence the political process. The potential involvement of these organisations could allow nonmainstream, minority and marginalised voices to become part of Seanad Éireann.

Senator Katherine Zappone: This Bill is an opportunity to open up the Seanad but it is also an opportunity to modernise the process through which nominating bodies to the Seanad apply and are approved. Prior to the Seanad referendum, my Independent Senator colleagues and I held a meeting of the current nominating bodies along with a significant number of civil society organisations who were interested in becoming nominating bodies. It was a very well attended, vibrant meeting with over 60 participants. As part of the event, I presented information on how Seanad elections work. I outlined the number and type of panels, how people are nominated, including a mention of the sub-panels and I also described the five vocational panels. Having had some key meetings with Ms Deirdre Lane and Ms Jody Blake prior to that meeting, I was also able to explain how they could register an interest in becoming a nominating body and how they might qualify to become a nominating body.

Many organisations have expressed an interest in becoming nominating bodies. However, we found the administrative process through which organisations apply to become nominating bodies is most outdated. The rules under which the bodies must apply date from the 1947 Seanad Electoral (Panel Members) Act and contain no provision for electronic communications. Applications must be posted or hand-delivered. More critical than that, the criteria for becoming a nominating body are not absolutely clear to those who wish to apply, as this provision of information is restricted within the 1947 Act. We need to amend the criteria required to become a nominating body so that those organisations which nominate can represent the wide diversity of civil society organisations that have been established since the 1950s. These amendments to the 1947 Act could be incorporated within this Bill which would be a positive move by the Government.

In 2014, we need a more open, transparent and modern process for selecting nominating bodies. If such a process were more straightforward, civil society’s interest in the Seanad could be harnessed to create a more accessible and representative Seanad. I would be happy to discuss these issues further with the Minister’s officials.

Another issue of concern is the lack of clear and concise information on the application process for prospective Seanad Nominating Bodies are required to undertake in order to register as a Nominating Body. An Information Campaign which details the application process, the necessary form to be completed and outlines the types of supporting documentation * needed in order to fully satisfy the Seanad Returning Officer of an organisations vocational expertise for the relevant vocational panel.
There is also anecdotal evidence to suggest that some NGOs have found it difficult to complete the process to be admitted to the Administration Panel, notwithstanding their offering of public services to individuals on a charitable basis (eg information provision, free legal advice and representation services etc) due to their advocacy work to campaign for better service provision by the State for their service users. Provision of clear and detailed advice to prospective Nominating Bodies as to the requirements before the commencement of the application period in February each year would be useful in this regard.

* Company constitutive documents (Certificate of Incorporation, Memorandum and Articles of Association, Audited Financial Accounts, Tax Registration Status and any publications produced by the organisation outlining its activities.

This submission also wishes to emphasise that in order to open up the Seanad and enhance its democratic credentials, there is a real need to modernise the process through which nominating bodies to the Seanad apply and are approved. The current nomination mechanism is antiquated and does not reflect our modern society. In Seanad Éireann on 11th March this year, during statements on the Seanad Electoral (University Members) (Amendment) Bill 2014, Katherine Zappone said “We need to amend the criteria required to become a nominating body so that those organisations which nominate can represent the wide diversity of civil society organisations that have been established since the 1950s. These amendments to the 1947 Act could be incorporated within this Bill which would be a positive move by the Government. In 2014, we need a more open, transparent and modern process for selecting nominating bodies. If such a process were more straightforward, civil society’s interest in the Seanad could be harnessed to create a more accessible and representative Seanad. I would be happy to discuss these issues further with the Minister’s officials.”

I was slightly disappointed that they seem to recommend retention of the current nomination process, which is controlled by the political parties. Maybe I have misread that. In our submission, we make some more radical recommendations for change.

Similarly, on the nomination process, I was slightly disappointed that they seem to recommend retention of the current nomination process, which is controlled by the political parties. Maybe I have misread that. In our submission, we make some more radical recommendations for change.

As it stands now, just 101 organisations are registered to nominate candidates to the five Seanad panels. We think there should be more. For example, let’s consider the Administrative and Voluntary panel with 14 nominating bodies, one of which, People with Disabilities Ireland, has had its funding removed. That leaves 13 organisations (including, unusually, two representing deaf people) nominating on behalf of every voluntary group in the country as well as representing those responsible for administration.

Civil Society and Arts Organisations Invited to Have a Say on Seanad Reform

Are you involved with a civil society or Arts organisation? Does your organisation want to have a greater impact on the political process? The Oireachtas is currently accepting applications for new organisations to become nominating bodies for candidates to Seanad Eireann.

On the 4th June 2002, a meeting was held in The Irish Bank Officials Association Headquarters, St Stephen’s Green. I was nominated by the Association. From fourteen applications of nomination, seven were nominated. Those nominated were as follows:

1
RECOGNITION OF NOMINATING BODIES
Bodies with the right to nominate to each panel are updated and published annually. Any eligible body may receive recognition but those bodies seeking recognition are required to have strict rules governing articles of association, finance, audit, management, etc. Additionally, the body’s objects must relate to or be connected with the interests and services listed in the Constitution. It is also a requirement that members of the body must be representative of persons who have knowledge and practical experience in the relevant interests. The detailed rules for recognition are clearly outlined in the legislation.

10. Nominating bodies.
(1) Section 8 of the Act of 1947 is amended by substituting the following for section 8(2)(b)
–
“(b) a body shall not be eligible to be registered in the register in respect of any particular constituency unless either—
(I)
(i) its objects and area of interest primarily relate to or are directly connected with the interests and services mentioned in subsection 1° of section 7 of Article
18 of the Constitution in respect of that particular panel, and(i) it has in place a set of corporate governance rules which detail the objectives, structure and rules applicable to the organization, and
(ii) its activities are concerned mainly with such interests and services, or
(II) it has an active body of members are representative of persons who have knowledge and practical experience of such interests and services;”.

11. Knowledge and practical experience. Part IV of the Act of 1947 is amended in Chapter II by inserting the following before section 25 -

“Knowledge and practical experience.
24A.
(1) This section gives further effect to the requirement set out in Article 18.7 of the Constitution which requires a person seeking to be a candidate in a Seanad general election to have knowledge and practical experience of the interests and services pertaining to the constituency in respect of which he or she is seeking to be elected.
(2) The requirement that a person mentioned in subsection (1) have knowledge and practical experience of the interests and services pertaining to the constituency in respect of which he or she is seeking to be elected may be met by establishing to the satisfaction of a judicial referee that he or she has-
(i)
(a) attained a formal qualification, or
(b) through several years of work experience, has attained a level of knowledge which can be regarding as being equivalent to a formal
qualification, in a field which is of direct relevance to the constituency in respect of which he or she is seeking to become a candidate, and
(ii) has verifiable practical experience which is of direct relevance to the constituency in respect of which he or she is seeking to become a candidate.
(3) Notwithstanding the generality of subsection (1), persons seeking nomination to the–
(a) cultural and educational constituency shall, to the satisfaction of the judicial assessor, demonstrate knowledge and practical experience of the following
interests and services, namely national language and culture, literature, art, education and professional interests;
(b) agricultural constituency shall, to the satisfaction of the judicial assessor, demonstrate knowledge and practical experience of the following interests and services, namely, agriculture and allied interests including the natural environment, the food industry, and fisheries;
(c) labour constituency shall, to the satisfaction of the judicial assessor, demonstrate knowledge and practical experience of the following interests and services, namely, labour, whether organised or unorganised;
(d) industrial and commercial constituency shall, to the satisfaction of the judicial assessor, demonstrate knowledge and practical experience of the following
interests and services, namely, industry and commerce, including banking, finance, accountancy, engineering, and architecture;
(e) administrative constituency shall, to the satisfaction of the judicial assessor, demonstrate knowledge and practical experience of the following interests and
services, namely, public administration and social services, including voluntary social activities and non-governmental organisations.(4) The onus in establishing the existence of the requisite degree of knowledge and practical experience rests with the aspiring candidate.
(5) A person who has previously served as a member of the Seanad shall be deemed to meet the knowledge and practical experience requirements of Article
18.7 of the Constitution and therefore subsections (2), (3) and (4) shall not apply in respect of the nomination of such persons.
(6) The Seanad Electoral Commission, having consulted with the Minister for Justice, shall appoint a serving or former Judge of the Superior Courts to serve as a judicial assessor for the purpose of this section.
(7) In order to be eligible for inclusion in a replacement candidates list provided for under section 57, a person shall satisfy the requirements of this section

The graphic illustrates how Seanad Éireann is elected, with a particular focus on the vocational panel elections, and highlights the Constitutional and legislative provisions governing the electoral process.Seanad Éireann Electoral Process L&RS Note

The Sub-Committee on Human Rights relative to Justice and Equality Matters will meet on Wednesday the 24th June at 2.30 p.m. in CR2 LH2000 to engage with Dr. Oonagh Breen, Senior Law Lecturer at UCD and Mr. Ivan Cooper, Director of Advocacy at The Wheel on the Charities Act 2009 with regard to the omission of Human Rights as a charitable purpose.

Speech delivered by Alan Shatter TD, Minister for Justice, Equality and Defence during Private Members’ Business on the Charities (Amendment) Bill 2014 (Second Stage) on the 21 January 2014

I would like now to refer to Section 2 of the proposed Bill. The Government does not support the amendment to include the advancement of human rights in the list of purposes that are of benefit to the community. This is not due to any lack of recognition of the vital role of human rights organisations in our communities both here and worldwide. Rather it is in light of the importance of ensuring that the new systems of regulation of charities is appropriately aligned with the system of charitable tax exemption that has long been operated by the Revenue Commissioners. Under this system, the Revenue Commissioners recognise the advancement of human rights as a charitable purpose only in the case of a human rights charity that has consultative status with the United Nations.

Bodies for the promotion of Universal Declaration of Human Rights and the implementation of European Convention for the Protection of Human Rights and Fundamental Freedoms.

209.—Where any body of persons having consultative status with the United Nations Organisation or the Council of Europe—

(a) has as its sole or main object the promotion of observance of the Universal Declaration of Human Rights or the implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or both the promotion of observance of that Declaration and the implementation of that Convention, and

(b) is precluded by its rules or constitution from the direct or indirect payment or transfer, otherwise than for valuable and sufficient consideration, to any of its members of any of its income or property by means of dividend, gift, division, bonus or otherwise however by means of profit,

there shall, on a claim in that behalf being made to the Revenue Commissioners, be allowed, in the case of the body, such exemption from income tax as is to be allowed under section 207 in the case of a body of persons established for charitable purposes only the whole income of which is applied to charitable purposes only.

Bodies for the promotion of Universal Declaration of Human Rights and the implementation of European Convention for the Protection of Human Rights and Fundamental Freedoms.20.—Where any body of persons having consultative status with the United Nations Organisation or the Council of Europe—

(a) has as its sole or main object the promotion of observance of the provisions of the Universal Declaration of Human Rights or the implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or both, and
(b) is precluded by its rules or constitution from the direct or indirect payment or transfer, otherwise than for valuable and sufficient consideration, to any of its members of any of its income or property by way of dividend, gift, division, bonus or otherwise howsoever by way of profit, there shall, on a claim in that behalf being made to the Revenue Commissioners, be allowed, in the case of the body, such exemption from income tax as falls to be allowed under section 333 of the Income Tax Act, 1967 , in the case of a body of persons established for charitable purposes only the whole income of which is applied to charitable purposes only.

a matter of political concern about how to define organisations which exist for the promotion and enhancement of human rights and the extremely grey area between such organisations and openly political groupings.

Freedom of association
It has been brought to my attention that section 3(11) of the Charities Act, 2009 has failed to recognise the promotion of human rights as “a purpose that is beneficial to the community”, which excludes any organization that works on human rights promotion from the benefit of tax exemption as well as from being considered a legitimate charity for fundraising purposes. This appears as a difficult challenge for defenders working on the promotion and advocacy of human rights.

Creating a balance between political election and vocationalism: the recommendations of the 1959 Seanad Electoral Law Commission, or a variant of these, could be implemented. This would entail division of each of the five panels into two more sharply differentiated subpanels. One of these would consist of candidates nominated by members of the Oireachtas, the electorate to be constituted as at present. The other would consist of candidates proposed by nominating bodies, the electorate to consist of representatives of these bodies themselves

Dr Oonagh Breen of UCD’s School of Law and Ivan Cooper of the Wheel will address the sub-Committee.

2008 revenue manual ? Irish law based on
mcgovern case human rights is political,changed in 2005

McGovern -v- Attorney-General; ChD 1982

A trust established by Amnesty International to promote certain of its objects was not charitable because it was established for political purpose; however a trust for research into the observance of human rights and the dissemination of the results of such research could be charitable.

Section 7 Charities Act 2009 separates charity status from tax designation. So you can be charity and just not get the tax relief.

Exemption from liability to pay tax.

7.— (1) Nothing in this Act shall operate to affect the law in relation to the levying or collection of any tax or the determination of eligibility for exemption from liability to pay any tax.

(2) The Revenue Commissioners shall not be bound by a determination of the Authority as to whether a purpose is of public benefit or not in the performance by them of any function under or in connection with—

CC9 2009 guidelines Speaking out: guidance on campaigning and political activity by charities (CC9) What charities and their trustees need to consider when campaigning or engaging in political activity. https://www.gov.uk/government/publications/speaking-out-guidance-on-campaigning-and-political-activity-by-charities-cc9